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tv   [untitled]    February 19, 2013 2:00am-2:30am PST

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this point. >> i'm sorry. but the work has been done already at this time. we recently seen cases similar to this. >> yes. unfortunately we take responsibility for those. we should have caught this at the time we did the permit. >> okay. thank you. >> okay. thank you. are we in deliberation? >> are we. so the time for public comment is over? >> yes. >> you want to -- >> i guess i will start. looking at the briefs it's a difficult case to look at. after hearing both sides they have already evidently had a problem with their initial contractor. the room would have triggered something was removed. seems at which point they're
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code compliant. they probably are going to deal with the city for another matter pretty shortly. i would say -- i mean if jurisdictional -- i would actually deny the jurisdiction request. >> my -- actually commissioner fung would you like to weigh in? i can hold until the last. >> you know -- there's two aspects of this case. one is that the work in the first three permits has been already been done. two, is that from both the previous appellant briefs and the issues today are predominately procedural. i haven't heard anything, and i
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guess i am jumping the gun a little bit by looking at both situations because my intent would be to -- or my inclination would be to bundle it all together so we can deal with it singly and get it done at one time both on a procedural basis, and i know that that would require some level of delay but it's going to happen anyway based on the comments made by planning. at the same time if there are any substantive -- the risks to the permit holder if there is a delay there is a monetary issue to it, but there is also another issue that should anything substantively come up arguing against their improvements or the scope of their work that may bear in how we look at the final permit. i would be inclined to continue both but not to stretch it out
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and allow them to be able to reduce the number of issues that is before us, and therefore be able to not only take care of -- any substantive concerns in agreement with the appellant but allow the permit holder to correct any of the procedural issues that have been brought up-to-date. >> i view this -- the issue here -- i mean what has been presented and the testimony we received and particularly from planning is very troubling to me and seems to me this is exactly called out as the jurisdiction requester has call it out, the serial permitting problem, and i think that -- i think it's a catch me if you can situation,
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and oh you solve that problem. we will take a slerch hammer to it. gone like it wasn't an issue. these are sophisticated people and this is a problem. if you're so sophisticated and finding loopholes around the way everyone else is required to do it is deeply problematic to me and i am inclined to grant the request. if a continuous is preferred on the part of all parties i would go that route but i think everyone needs to delve in and if there is an environmental review that will happen anyway and i want glad planning is on top of it, but this is one of the cases that calls for greater scrutiny. >> i can't say i disagree with
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president hwang. the way i'm leaning is more towards a continuous because of mr. sanchez's representations he hasn't had the opportunity to look at this closely, so i encourage that route if that is acceptable to everyone. >> did you want to hear from the parties? >> should we ask the permit holder? >> we should ask both parties. >> yeah. >> commissioners just to add more to your conundrum here i want to remind you if the zoning administrator does suspend these permits that action is also appealable as is the release of that suspension so there are other potentially appealable actions coming. >> i guess i am always looking for a solution madam director and seeing if we can take care of these things at one time and get it out of here, and perhaps
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we can make both parties not happy to some degree, but the -- i would add one final thing. in reviewing the scope of the work -- most of the scope of work i don't have issues with. i just want to lay that out and i want to make sure that this doesn't get people carried away. >> so can we hear from all parties regarding a continuance then? >> [inaudible]. to the continuance on the terms suggested, whatever works for the party of the important thing is get a full set of plans and i think planning wants that as well so that makes sense for us.
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>> okay. >> mr. s ore no. >> on behalf of the permit holders no we don't know stipulating to a continuance will accomplish anything. we hear what you're saying and the board -- i mean the department might take action to put brakes on things and we are confident working with them and appease with them than negotiating with the other side at this point so we would rather have you vote? >> okay. >> i don't know if i have the votes but i'm going to move to grant jurisdiction.
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>> commissioner hwang i wonder if you would state a basis for your motion. one possibility is cities to do plans that failed to articulate a project. >> sounds good. >> okay. mr. pacheco do you want to call the roll on that motion? >> okay. we have a motion to grant jurisdiction over all three permits. on that basis commissioner fung. >> no. >> commissioner hurtado. >> aye. >> vice president is abcent. commissioner honda. >> no. >> the vote is two-two. four votes are needed to grant a jurisdiction request so absent another motion the jurisdiction would be denyod all three permits. >> i'm going to move to
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continue the jurisdiction request. >> okay. to what date president hwang. >> let's see. let me think. march 20. >> we have a motion from president hwang to continue all matters, all three matters to march 20. >> all three jurisdiction requests is what you mean. >> yes, all three to march 20. on that motion -- >> hold one second victor. >> yes. >> madam president, i know i am perhaps jumping the gun and i see no reason to keep the parties here to the end of a
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fairly long agenda, but it's going to be my intent to ask for a continuance on the two permits that are occurring further so there can be some dialogue with them and planning resolve certain issues and get it and have the final solution occur at this board. >> so consolidate? >> and if they choose to not accept that then they will have to wait until the very last case of the evening, but that would be my suggestion. >> if you would like to vote on those other matters we can call them -- >>i would rather have their concurrence. if they don't concur we will wait until the end. okay. >> i think commissioner fung even if they concur technically we call them and at least
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accept public comment on it because they're on the calendar. >> [inaudible] i think board member fung is asking if we will continue the appeals scheduled for later today. >> yes. >> to that the answer is yes. we would. >> it's also bundled of the jurisdiction -- >> no, i don't understand the motion to continue the jr's since there was a two-two vote taken. what is being continued? we had the whole hearing so i don't understand the need so i don't think we are continuing agreeing to continue that. >> that's fine. we will continue with my motion for the jurisdiction request whether you agree or not. >> i understand that. >> so shall we move with calling the roll on that motion.
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>> [inaudible] >> we're talking about march 20. >> [inaudible] we will wait for the end of the calendar. >> okay. so mr. pacheco i will ask to call the roll on the request to continue the jurisdictional request to march 20. >> the motion was made by the president to continue to march 20. commissioner fung. >> no. >> commissioner hurt. >> aye. >> vice president is absent. commissioner honda. >> no. >> the vote is two-two. three votes are needed to continue this matter so i believe then the prior motion would stand,
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correct? >> the prior motion failed -- not sufficient votes. >> the result would stand. >> right unless another motion is ready the jurisdiction request is denied by operation of law. >> right. >> okay. >> okay. >> that's fine. all right. so commissioners do you want me to move onto item five or take up items 10a and b? >>i would like to move to item five and after that item i would like to take a break. >> okay. we will call item five appeal no. 12-146 and mary amil san francisco palm reader and 247 columbus avenue appealing the denial of fortuneteller permit. this is on for hearing today. mr. fisher representing the appellant. you have seven minutes. >> thank you. good evening president hwang and members. i
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represent mary amil and who has told fortune for years. no san francisco fortuneteller law existed in the city until the end of 2003 and after full investigation of mary amil the sfpd granted the yearly license to her which would have been automatically renewed again in 2010 except the payment deadline was missed requiring a new application for which identification she used her 2005 expired dmv id and the fortuneteller license issued by the sfpd after full investigation which had just
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expired in 2010. the police department rejected this as proof of identity, and the processing for the new license was delayed several times for a year, almost two years as mary tried unsuccessful to obtain her birth certificate from vital records, from the mormon church, salt lake city genealogical center and elsewhere without knowing her birth place, date or birth name. the call by the board this tonight is fairly apply the ordinance and interpretation of the ordinance to the facts of this matter, and the purpose of the id is to aid the police check for somebody seeking a business license. it's not to be an end in itself
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a barrier to block balance licenses. the california appeals court recently at the end of december last year said that in interpreting laws it said "we must seek to ascertain and effectuate the purpose of the legislature interpreting each provision in a manner consistent with the purpose in light of the objectives to be achieved" so here you have a san francisco ordinance that says "the purposes to regulate fortuneteller so the city and county can thoroughly investigate fraud" so the police department investigated her, reissued the permit from year to year. she has a dmv identification. even though it's expired her identity didn't change after it expired and i think that a fair application
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of this law is that the ordinance requirement is met. i mean the police department could still have done an investigation to update the previous one if it wanted but just to block it because she's unidentified where they have a record of hear going back to 1979 with a misdemeanor arrest and took into account when they granted the permit. it shouldn't be a ground for denying the permit and using expired id is consistent as we set out in the brief with the laws in many contexts, more medicare, u.s. pass porpt. can you use a expired passport to prove id and again because it's expired doesn't mean your identity has changed. only a few san francisco business
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permit laws leave the entire process to the police department and even fewer call for government issued id with the permit application. those that don't require a government id include licenses for charitable solicitations, new photographer, even escorts service. >> >> and it's not ordinary commercial activity but first amendment and the u.s. supreme court held repeatedly where there are restrictions to carry out the first amendment rights should be construed and all reasonable laws are preserved with that, but there is another matter i need to bring to your attention tonight. and that is a week ago today i over nighted to this board and to the police department lawyer on the case a motion for your consideration it to provide a important new fact
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that arose since this appeal was filed and recently the state of california and san francisco county issued a picture id medical marijuana card for mary, an id that unquestionably meets the ordinance referenced and that you have a government id. however the board's executive director called me the next morning and said she was barred under your rules of allowing the president or any member of the board even to see or let alone to consider the motion to submit the information in a few page memo. i was told i could orally present this to you tonight, and the papers are still here. i think mr. pacheco has the files, and i would hope that you would review them before you decide. i will just put the id here which may get on your screen or
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something, but it's an exhibit -- >> could you blow that up a little bit? >> someone knows. >> they have to pick it up. >> there it is. >> the copies are with the papers that i submitted that i hope that you will review. i was again surprised it couldn't be considered. mary's medical marijuana application in supporting -- >> can you pause that? i am comfortable in receiving -- plus we have an issue. >> my screen is not working. >> given this is new information i am uncomfortable receiving the memo. do we have copies? >> yes. >> so the board is accepting these documents? >>i am accepting, yes. >> okay. i'm crossing out
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"rejected". >> and the police department has a copy; right? okay. >> and a copy of the id is in this packet? >> yes. it's an exhibit. >> and you recognize by putting it into evidence it becomes a public record? >> yes. >> it's health related information. >> through true. >> just making sure. >> yes it was over nighted to the police representative as well. >> okay. >>i am starting your time again. you're at 32 seconds. >> this application in supporting medical and other documentation were filed as required by state law with the county agency that processed it over a two week period and issued the id card. i understood after i sent it to the police department and had a conversation with the representative he thinks it was improperly or shouldn't have been issued. i don't know the
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grounds and in my reply i will speak to whatever he raises but it's a valid id. it was issued after the appeal was filed and i sent it in a week ago yesterday and regrettably you're just getting it this evening but it is an exhibit. >> thank you. >> so i will -- without time look forward to coming back for three minutes. >> thank you. we can hear from the police department now. >> good evening commissioners. i am mark [inaudible] and i'm an attorney in this matter. >> could you speak into the microphone? >> good evening commissioners. i am representing the police department in this matter and before this commission to request that you deny the appeal and uphold the police
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department's decision. first thing i would like to talk about quickly is the constitutional arguments made in the brief. i think it would be inappropriate for the commission to decide on those issues. those issues should be left for the courts. this legislation was vetted through the city attorney's office in 2003 and full board -- the full board of supervisors and they looked at the case law that was cited in appellant's brief and i am sure they considered the case that was mentioned in the city of a zeusa and dealt with a prohibition of fortuneteller and this is a different issue. this deals with the first amendment issue. if the appellant wants to pursue those to pursue them in the courts. next we would like to discuss about the interpretation of 1304. the police department believes that interpreted that
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section to requires either drivers license or passport or other government id and the real issue is government id and believes it want entered it fairly and sensibly and when they look at id they look at id that is valid and that's all we're looking for. as a matter of fact the fortuneteller went into legislation in 2003 per the legislative history and the permit was granted to the appellant in november 2003 so the standard that was used back then requiring government id is the same that was applied in 2010. the appellant was given two years to find valid government id and she was unable to do so. the police department nor the stare nor the board of supervisors changed the standards for identification.
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that was changed by the federal government. in 2005 they passed the real id act and made it stricter for people to get a state identification and that was in response to the highjackers of 911 getting a false identification. public policy demands that the police department do whatever it can to protect the public. now the reason the fortuneteller ordinance was breat created is because the da's office received numerous complaints of people taken advantage of, loss of savings, jewelry, so forth. people going to fortuneteller are pretty much vulnerable and the police department wants to make sure when they do a background check it's that person, and therefore public policy would require the interpretation of government identification to be valid.
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also the permitting process would be subject to ash trairness and confusion if we allow someone to come before any permitting application process and give an expired identification plus a bunch of letters or other documentation that's not really id. i would think it wouldn't be fair to the public who are applying for permits, not just observe the police department but other 'll other agencies and the san francisco county records office requires valid id before they issue a identification card so this standards not unique to the police department. it's used in other government agencies as well. regarding the marijuana card. that's kind of an issue. the appellant did get a state of california medical marijuana identification card. we don't accept that as
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valid identification. why? it's not on the board now but you see it's it has a photo and id number. that's it. so it has a website there. if you run the id number it comes back and it just says "valid". that's not sufficient government identification. also the department of public health accepted the appellant's expired california id as proof of identity, so the police department will not be able to accept that. in fairness to the public as a valid identification . in conclusion the police department asks this commission to deny the appeal or in the alternative continue this hearing to allow the appellant to arrange for valid government identification submitted. i will answer any questions.
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>> i have a question. do you know as whether the process of getting a medical marijuana card there is a background check conducted? >> i don't have that information. >> okay. maybe i will ask that question of the counsel for the appellant. thank you. >> two questions. one is in the briefs there is discussion about san francisco's medical cannabis card, id card. >> yes. >> that's accepted? >> we're not accepting the cannabis -- well, medical marijuana card as valid government id because it doesn't have identifying information on it other than a photograph and a number and that number when you run it comes back to just saying it's valid. the purpose of the card so it can be shown to a law enforcement officer and show
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that the bearer of the card has a right to possess marijuana. >> right. that's the state one you're referring to? san francisco is the same? >> no. let me just clarify. san francisco processes applications. the applications then go to the state and the state then issues the identification card. under the state statute or under senate bill 420 which created the legislation for this it says "proof of identity". now, a manager at the department of public health told me they accept valid id but somebody else said "we really don't check the expiration date on the id that is submitted" and the reason they didn't is because it's not part of the process. they have a very am standard.


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